WHY AND HOW SADDAM MUST BE PUNISHED

A JURISPRUDENTIAL/PHILOSOPHICEXPLANATION

By Louis Rene Beres

When the victorious allied powers established a special
military tribunal at Nuremberg on August 8, 1945, they reaffirmed
an elementary principle of law: Nullum crimen sine
poena, "No crime without a punishment."
In 1946, this reaffirmation was underscored in Principle I of the
binding Nuremberg Principles: "Any person who commits an act
which constitutes a crime under international law is responsible
therefore and liable to punishment." These Nuremberg
Principles were later formulated by the United Nations
International Law Commission, at the request of the General
Assembly in 1950, stipulating:

"Offenses against the peace and security of
mankind....are crimes under international law, for which the
responsible individuals shall be punished."

Why, exactly, should a head of State like Saddam Hussein be
punished for his multiple crimes under international law?
Consider the following argument: The philosophic rationale of
punishment lies in part in the imperative to incapacitate
particular persons from the commission of further crimes and to
inhibit other prospective criminals from commiting similar grave
offenses. The entire argument, in fact, can be abstracted from
Plato's Protagoras:

"No one punishes those who have been guilty of injustice
solely because they have committed injustice, unless he punishes
in a brutal and unreasonable manner. When anyone makes use of his
reason in inflicting punishment, he punishes not on account of
the fault that is past, for no one can bring it about that what
has been done may not have been done, but on account of a fault
to come in order that the person punished may not again commit
the fault, that his punishment may restrain from similar acts
those persons who witness the punishment."

Protagoras's theory of punishment rejects the alleged violence
and irrationality of straight retributivism. For Plato, the very
rationale of punishment lies in its orientation to the future,
preventing the offender himself from repeated wrongdoing and
deterring others from similar offenses. Regarding Saddam Hussein,
President Clinton is assuredly interested in preventing the Iraqi
dictator from undertaking further crimes, especially crimes of
war, crimes of peace and crimes against humanity.

The ancient Hebrews viewed the shedding of blood as an
abomination that requires expiation, "for blood pollutes the
land, and no expiation can be made for the blood that is shed in
it, except by the blood of him who shed it." This belief in
"pollution" parallels that of certain ancient Greek
theory. "The (Greek) Erinyes," says Marvin Henberg,
"do for the Greeks of the seventh to fourth centuries BCE
what Yahweh does for the ancient Hebrews; they dewmand the blood
of homicides." The pre-Socratic philsophers, especially
Anaximander, Heraclitus and Parmenides, displayed a metaphysical
view of retributive jutice as inherent in the cosmos itself.
Among the ancient Greeks, homicide pollution extended to those
guilty of accidental murder and, left unpunished, even threatened
the community at large. According to Marvin Henberg:

"Homicide pollution entails the following: One guilty of
murder, deliberate or accidental, contracts a metaphysical stain,
invisible save to the Erinyes and to the gods. Like a deadly
disease, pollution renders the agent a danger to others, for
until the stain is purified or the polluted person exiled the
public at large stands threatened. Crops may be blighted (witness
OEDIPIS REX) as incentive for the populace to
seek out the murderer. Liability to suffering, then, is
collective; and in its nearly allied form of the curse, pollution
can be hereditary as well as collective, visiting each generation
of a single family with renewed suffering. Finally, the doctrine
of pollution imposes strict liability for its offenses. No
excuse, justification or mitigation of penalty is allowed: The
accidental manslayer must seek purification equally with one who
kills out of greed or passion."

Aeschylus offers a sense of the Greek view of punishment. In THE
LIBATION-BEARERS (310-14) the chorus intones: "The
spirit of Right cries out aloud and extracts atonement due: blood
stroke for the stroke of blood shall be paid. Who acts, shall
endure. So speaks the voice of the age-old wisdom."

Let us return to Plato. Thinking of vice, the source of crime,
as an ailment of the soul, just as physical disease to the body,
he recommends punishment to restore order in the soul. The
criminal, therefore, derives a positive consequence from
punishment. Discarding the claims of retributivism, as we have
already noted, Plato views punishment as just and good only to
the extent that it serves human welfare. Punishment, in this
view, should turn others away from vice and teach virtue.
Aristotle, Cicero, St. Thomsas Aquinas, Hobbes, and Bentham have
taken similar positions. Says Bentham:

"The general object which all laws have, or ought to
have, in common, is to augment the total happiness of the
community; and therefore, in the first place, to exclude, as far
as may be, everything that tends to subtract from that happiness;
in other words, to exclude mischief....But all punishment is
mischief; all punishment in itself is evil. Upon the principle
utility, if it ought at all to be admitted, it ought to be
admitted in as far as it promises to exclude some greater
evil."

It follows here that utilitarian views of punishment, in
contrast to retributivist perspectives, may or may not support
the principle of Nullum crimen sine poena.
As to the retributivist perspective, Immanuel Kant remains the
classical example of this view of legal punishment, but in this
case retributive justice is not a matter of revenge. Rather,
Kantian retribution, as an action of the state against the
criminal, is always an impersonal action, one undertaken without
passion, and as a sacred duty. For Kant, the legal punishment of
criminals is a distinct categorical imperative. It is in Kant
that we recognize the strongest possible reaffirmation of Nullum
crimen sine poena:

Even if a civil society were to dissolve itself by common
agreement of all its members (for example, if the people
inhabiting an island decided to separate and disperse themselves
around the world), the last murderer remaining in prison must
first be executed, so that everyone will duly receive what his
actions are worth and so that the blood-guilt thereof will not be
fixed on the people because they failed to insist on carrying out
the punishment; for if they fail to do so, they may be regarded
as accomplices in this public violation of legal justice.

Kant returns to the beginning, to the concept of "blood
guilt," and to the insistence that society has a duty to
punish even without resulting utilitarian consequences. For the
United States, the Nuremberg obligations to bring Hostes
humani generis ("common enemies of
humankind") to trial are doubly binding. This is because
these obligations represent not only current obligations under
international law, but also the obligations of a higher law
embedded in the United States political tradition. By codifying
the idea that justice is peremptory, that it cannot be traded-off
for reasons of political expedience or even for presumed
conditions of peace, the Nuremberg obligations reflect perfect
convergence between international criminal law and the law of the
American Republic. Of course, all international criminal law is
already part of the law of the United States, an incorporation
expressed at Art. VI of the U.S. Constitution and by associated
Supreme Court decisions.

Optimally, custody over criminals like Saddam Hussein would be
possible via the established mechanisms of extradition and
prosecution and by the associated means of "indirect
enforcement" (prosecution within authoritative municipal
courts in the absence of a permanently-constituted international
criminal court or in an ad hoc Nuremberg-style tribunal), but
these prospects are generally unrealizable when the alleged
wrongdoers are political leaders. Thus, the method of forcible
abduction, though hardly ideal, may be required. According to
Vattel: "If a prince, by violating the fundamental laws,
gives his subjects a lawful cause for resisting him, any foreign
power may rightfully give assistance to the oppressed people who
ask for its aid." Indeed, continues Vattel: "As for
those monsters who, under the name of the sovereigns, act as a
scourge and plague of the human race, they are nothing more than
wild beasts, of whom every man of courage may justly purge the
earth."

Forcible abduction is not an unknown remedy under
international criminal law. While great care must be taken not to
violate peremptory human rights, where extradition is not a
viable option the only real alternative may be to leave Saddam
Hussein's crimes unpunished. Here, forcible abduction may be the
only way (excluding, perhaps, in absentia trials or
assassination) to give effect to Nullum crimen sine
poena.

There are several recent examples of forcible abduction under
international criminal law. Israel, in 1960, abducted Nazi war
criminal Adolph Eichmann from Argentina on charges of
Nuremberg-category crimes. In 1985, a United States military
aircraft forced down an Egyptian aircraft over international
waters on the grounds that the Egyptian plane held accused
terrorists in the Achille Lauro Affair. In 1987, again in
international waters, the F.B.I. lured Fawez Younis, a Lebanese
national, on to a yacht and transported him by force to the
United States for trial. And on April 2, 1990, Humberto Alvarez-
Machain, a medical doctor and a citizen of Mexico, was forcibly
abducted from his ofice by persons answerable to the Drug
Enforcement Agency (DEA), and flown by private plane to Texas to
face charges of kidnapping and murdering a DEA agent and the
agent's pilot.

Regarding custody over criminals by forcible abduction, two
issues present themselves: (1) seizure of Hostes
humani generis when custody cannot be obtained via
extradition; and (2) seizure of Hostes humani generis
who happens to be a sitting head of state or leader of a
political faction. On the first issue, we may consider that
President Ronald Reagan, in 1986, authorized procedures for the
forcible abduction of suspected terrorists from other states for
trial in United States courts. Here the statutory authority for
Reagan's position was contingent upon the terrorist acts being
linked with the taking of U.S. citizens hostage (acts that are
subject to the jurisdiction of U.S. courts under the Act on the
Prevention and Punishment of the Crime of Hostage-Taking. In
1987, as already noted, the FBI lured a Lebanese national named
Fawaz Younis on to a boat and transported him to this country for
trial. His abduction was premised upon his suspected involvement
in a 1985 hijacking of a Jordanian airliner at Beirut Airport, in
which U.S. nationals had been held hostage.

On the second issue, there normally exists, under
international criminal law, a substantial distinction between
abduction of a terrorist or other Hostes humani
generis and the abduction of a head of state or
political leader. Indeed, there is almost always a presumption of
sovereign immunity, a binding rule that exempts each state and
its high officials from the judicial jurisdiction of every other
state. Although the rule of sovereign immunity is certainly not
absolute in the post-Nuremberg world legal order, the right of
any one state to seize a high official from another state is
exceedingly limited. In an 1812 case before the Supreme Court of
the United States, Chief Justice Marshall went so far as to argue
for "the exemption of the person of the sovereign from
arrest or detention within a foreign territory."
Nevertheless, where the alleged crimes in question are of a
Nuremberg-category offense (and surely Saddam's crimes fit this
requirement), and where no other means exist whereby to gain
custody of the pertinent official(s), the peremptory or jus
cogens expectations of Nullum crimen
sine poena may clearly override those of sovereign
immunity.

It is arguable, of course, that the formal proceeding of a
trial can never be applied appropriately to such overwhelming
lawlessness as that of Saddam Hussein (an argument that was made
by Hannah Arendt about the Eichmann trial in Jerusalem), and that
such a trial would actually undermine justice. Here, prosecution
of Saddam Hussein, even if it were technically and politically
possible, would be understood as a mockery of civilized
international relations, not because of perceived abuses of power
and legal procedure, but because such judicial "remedy"
could create an erroneous appearance of proportionality. This
argument, which holds that in certain cases of altogether
egregious crimes, no amount of punishment can produce justice,
leads directly to two diametrically opposite courses of action:
(1) extra-judicial punishment (normally assassination ), or (2)
leaving the egregious crimes unpunished. The first course of
action is unsatisfactory in the context of this argument because
it contains all of the elements of infinite regress (i.e., when
if ever is the amount of extra-judicial punishment finally
commensurate with the crime?) and because of the tactical
difficulties involved in killing an "adequate" number
of perpetrators. The second course of action is unsatisfactory
because it expresses a flagrant disregard for peremptory
expectations of Nullum crimen sine poena.

It follows from all this that an appropriate trial of Saddam
Hussein would be productive of justice. At the same time, such a
trial would be effectively inconceivable in actual practice. This
means, in essence, that Saddam may be left unpunished (and in
power to commit further crimes) or that he may be assassinated.
If the latter, the purposeful killing of Saddam would have to
take place in the context of planned United States military
attacks.

Presently, of course, the United States is most concerned
about punishing Saddam Hussein for his wilful disregard of U.N.
Security Council resolutions concerning weapons of mass
destruction and about the extraordinary threat he still poses to
certain neighboring states with these weapons. U.S. armed attacks
on Iraq, therefore, would be based in law upon collective
security authorizations (i.e., pertinent United Nations
resolutions) and upon the customary right of anticipatory
self-defense (as distinguished from the codified right of
self-defense, at Article 51 of the U.N. Charter, following an
armed attack). These attacks would not be based in law on
intended assassination of Saddam Hussein (for both pragmatic and
jurisprudential reasons), although - in principle at least - such
a rationale would be deducible from binding expectations of the
human rights regime in international law and from the
decentralized authority structure of world law. In the continued
absence of a truly capable central global authority and of a
viable law enforcement apparatus in world politics, the
assassination of Saddam Hussein could be distinctly
law-enforcing. Much as many would now seek to deny it, without
such an assassination Nullum crimen sine poena will remain an
altogether hollow principle.

This argument is strengthened by the underlying and overriding
expectations of Natural Law, expectations that lie at the very
heart of American law and politics. As Blackstone observed, in
the Fourth Book of his Commentaries (the book upon which so much
of our American legal system is based), international law is
nothing more than an operational code for "the eternal,
immutable laws of good and evil." For Blackstone, all
international law is deducible from Natural Law and is,
therefore, binding upon each and every country. Thus, each state
is called upon "to aid and enforce the law of nations, as
part of the common law, by inflicting an adequate punishment upon
offenses against that universal law...."

Natural Law, which forms the basis of international law,
always corresponds to that which is "good and
equitable" (bonum et aequum).
Stemming conspicuously from the Decalogue and from the Covenant
Code of Israel, which are deeply embedded in the American
heritage and consciousness, Natural Law is expressed not only in
the Declaration of Independence but also in the Bill of Rights.
The Ninth Amendment, in stipulating that "the enumeration of
certain rights in this Constitution shall not prejudice other
rights not so enumerated, reflects the belief in a law superior
to the will of all human governance.

We may conclude, then, that United States responsibility to
ensure punishment of Saddam Hussein - an ensurance that could
require assassination of the Baghdad tyrant - derives not only
from the explicit expectations of international law (expectations
which are already part of U.S. law by virtue of Article 6 of the
Constitution and of associated Supreme Court decisions) but also
from the Natural Law foundations of U.S. municipal law. In the
strict sense, the Natural Law foundations of United States law
are not a distinct alternative to international legal rules, but
rather a distinct source of international law. According to
Article 38(c) of the Statute of the International Court of
Justice, international law derives in part from "the general
principles of law recognized by civilized nations." This
means nothing less than that the U.S. Declaration of Independence
and Bill of Rights represent an authoritative source of
international legal norms. Indeed, contemporary international law
displays an even more explicit debt to these documents by
identifying an "International Bill of Rights" as the
cornerstone of a binding, worldwide human rights regime. Hence,
any U.S. initiative to punish international crimes - especially
crimes of the egregious nature committed by Saddam Hussein -
would represent essential support for both international law
directly and for our own founding principles of law and justice.

A poem by the Greek poet Odysseus Elytis warns, "Those
who committed evil have been taken up by a black cloud." In
the matter of Saddam Hussein, however, evil can be punished and
prevented only by the armed forces of the United States. It is up
to this country, authorized by national and international law, to
undertake the necessary steps, even if these steps should include
armed force and assassination. Regarding the threat from Iraq,
there is no "black cloud" upon which we can depend.

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Louis Rene Beres is a Professor of
International Law, Department of Political Science at Purdue
University. E MAIL: beres@polsci.purdue.edu